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October 13, 2005
Another Day, Another Flub From White House

It seems like the Bush White House has suddenly acquired a tin ear for politics over the past fortnight. Just weeks after Republican Senators angrily asserted that religion should have nothing to do with the confirmation of John Roberts to the Supreme Court, the White House has openly embraced religion as a key qualification for the nomination of Harriet Miers, creating a new controversy for the new nominee:

President Bush prompted criticism from the right and the left on Wednesday after he said White House officials had told conservative supporters about the religious beliefs of his latest Supreme Court nominee, Harriet E. Miers, as part of an "outreach effort" to explain who she is.

"People ask me why I picked Harriet Miers," Mr. Bush told reporters in the Oval Office. "They want to know Harriet Miers's background, they want to know as much as they possibly can before they form opinions. And part of Harriet Miers's life is her religion."

Mr. Bush made his comments only weeks after some conservatives declared that any discussion of the religion of Chief Justice John G. Roberts Jr. should be off limits in his confirmation process and that questions about his views amounted to an unconstitutional "religious test" of his faith as a Roman Catholic.

The president spoke on the same day that James C. Dobson, the founder of the conservative evangelical group Focus on the Family, said in remarks broadcast on his organization's radio program that Karl Rove, Mr. Bush's chief political adviser, had assured him that Ms. Miers was an evangelical Christian and a member of "a very conservative church, which is almost universally pro-life."

I find nothing wrong with nominating religious people to the Supreme Court, or any other court. As long as one keeps their religion separate from the law, no one has any complaint. The entire point of judicial restraint focuses on judges relying on the literal text of the law and the Constitution to render judgment, and therefore keeping their personal feelings from creating precedents that turn into legislation.

However, when religion becomes the reason that someone gets a nomination to the Court, the reasonable assumption is that the nominee wants to apply their religious values to the cases which they will hear. That creates judicial activism, not judicial restraint, even if it is activism that many would prefer over the activism of the past 40 years. The irony is that such a prerequisite isn't necessary for that kind of result. An athiest operating under true judicial restraint and originalism will find no bar to religious expression in the public square, because the First Amendment does not truly outlaw such expressions.

Using religion as a test for a nomination gets us into dangerous territory, not to mention provides more than a dollop of hypocrisy for this administration. We do not want Congress opening a debate on people's religious beliefs and how that affects their approach to the job. It will create a mini-Inquisition on Capitol Hill for each nominee, who will be required to disavow their faith before proceeding to nomination. It's the kind of act that this administration has often decried, and for good reason.

The only motivation for using this as a public strut for the Miers nomination is because the White House clearly has no plan to market Miers to a skeptical public. They have run out of a short list of talking points, having done little or no homework on Miers before announcing her nomination. It's the one point on which most people can agree.

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Posted by Ed Morrissey at October 13, 2005 5:40 AM

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THE HERETIK believes Bush can still do the right thing with Harriet Miers: withdraw her nomination and call Harvard Business School to tell them he is voluntarily giving back his MBA degree. What is a Harvard degree worth if [Read More]

Tracked on October 13, 2005 9:35 AM

» What Is a Religious Test? from Big Lizards
So are conservatives "hypocritical," as E.J. Dionne concludes, for objecting to the Democrats' use of religion to criticize nominees like John Roberts then turning around and using Harriet Miers' religion as a reason to support her now? The answer is... [Read More]

Tracked on October 14, 2005 6:08 PM

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